[Federal Register Volume 65, Number 217 (Wednesday, November 8, 2000)]
[Notices]
[Pages 67016-67019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28671]


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JUDICIAL CONFERENCE OF THE UNITED STATES


Committee on Court Administration and Case Management, 
Subcommittee on Privacy and Electronic Access to Court Files; Notice of 
Request for Public Comment

AGENCY: Judicial Conference of the United States, Committee on Court 
Administration and Case Management, Subcommittee on Privacy and 
Electronic Access to Court Files.

ACTION: Notice of request for public comment.

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SUMMARY: The Court Administration and Case Management Committee of the 
Judicial Conference of the United States, through its Subcommittee on 
Privacy and Electronic Access to Case Files, is seeking comment on the 
attached document outlining policies under consideration to address 
issues of privacy and security concerns related to the electronic 
availability of court case files.

DATES: Comments will be accepted from November 13, 2000 through January 
26, 2001.

ADDRESSES: All comments should be received by 5 p.m., January 26, 2001. 
The electronic submission of comments is highly encouraged. Electronic 
comments may be submitted at www.privacy.uscourts.gov or via e-mail at 
Privacy__Policy__Comments@ ao.uscourts.gov. Comments may be submitted 
by regular mail to The Administrative Office of the United States 
Courts, Court Administration Policy Staff, Attn: Privacy Comments,

[[Page 67017]]

Suite 4-560, One Columbus Circle, NE., Washington, DC 20544.

FOR FURTHER INFORMATION CONTACT: Abel J. Mattos, Chief, Court 
Administration Policy Staff, Administrative Office of the United States 
Courts, One Columbus Circle, NE., Washington, DC 20544, telephone (202) 
502-1560, fax (202) 502-1022.

    Dated: November 1, 2000.
Abel J. Mattos,
Chief, Court Administration Policy Staff.

Request for Comment on Privacy and Public Access to Electronic Case 
Files

    The federal judiciary is seeking comment on the privacy and 
security implications of providing electronic public access to court 
case files. The Judicial Conference of the United States is studying 
these issues in order to provide policy guidance to the federal courts. 
This request for public comment addresses several related issues:
     The judiciary's plans to provide electronic access to case 
files through the Internet;
     The privacy and security implications of public access to 
electronic case files;
     Potential policy alternatives and the appropriate scope of 
judicial branch action in this area.
    The judiciary is interested in comments that address any of the 
issues raised in this document, including whether it is appropriate for 
the judiciary to establish policy in this area.
    All comments should be received by 5 p.m. January 26, 2001 and must 
include the name, mailing address and phone number of the commentator. 
All comments should also include an e-mail address and a fax number, 
where available, as well as an indication of whether the commentator is 
interested in participating in a public hearing, if one is held. The 
public should be advised that it may not be possible to honor all 
requests to speak at any such hearing.
    The electronic submission of comments is highly encouraged. 
Electronic comments may be submitted at www.privacy.uscourts.gov or via 
e-mail to Privacy__Policy__Comments@ ao.uscourts.gov. Comments may be 
submitted by regular mail to The Administrative Office of the United 
States Courts, Court Administration Policy Staff, Attn: Privacy 
Comments, Suite 4-560, One Columbus Circle, NE., Washington, DC 20544.

Electronic Public Access to Federal Court Case Files

    The federal courts are moving swiftly to create electronic case 
files and to provide public access to those files through the Internet. 
This transition from paper files to electronic files is quickly 
transforming the way case file documents may be used by attorneys, 
litigants, courts, and the public. The creation of electronic case 
files means that the ability to obtain documents from a court case file 
will no longer depend on physical presence in the courthouse where a 
file is maintained. Increasingly, case files may be viewed, printed, or 
downloaded by anyone, at any time, through the Internet.
    Electronic files are being created in two ways. Many courts are 
creating electronic images of all paper documents that are filed, in 
effect converting paper files to electronic files. Other courts are 
receiving court filings over the Internet directly from attorneys, so 
that the ``original'' file is no longer a paper file but rather a 
collection of the electronic documents filed by the attorneys and the 
court. Over the next few years electronic filing, as opposed to making 
images of paper documents, will become more common as most federal 
courts begin to implement a new case management system, called Case 
Management/Electronic Case Files (or ``CM/ECF''). That system gives 
each court the option to create electronic case files by allowing 
lawyers and parties to file their documents over the Internet.
    The courts plan to provide public access to electronic files, both 
at the courthouse and beyond the courthouse, through the Internet. The 
primary method to obtain access will be through Public Access to Court 
Electronic Records (or ``PACER''), which is a web-based system that 
will contain both the dockets (a list of the documents filed in the 
case) and the actual case file documents. Individuals who seek a 
particular document or case file will need to open a PACER account and 
obtain a login and password. After obtaining these, an individual may 
access case files--whether those files were created by imaging paper 
files or through CM/ECF--over the Internet. Public access through PACER 
will involve a fee of $.07 per page of a case file document or docket 
viewed, downloaded or printed. This compares favorably to the current 
$.50 per page photocopy charge. Electronic case files also will be 
available at public computer terminals at courthouses free of charge.

Potential Privacy and Security Implications of Electronic Case 
Files

    Electronic case files promise significant benefits for the courts, 
litigants, attorneys, and the public. There is increasing awareness, 
however, of the personal privacy implications of unlimited Internet 
access to court case files. In the court community, some have begun to 
suggest that case files--long presumed to be open for public inspection 
and copying unless sealed by court order--contain private or sensitive 
information that should be protected from unlimited public disclosure 
and dissemination in the new electronic environment. Others maintain 
that electronic case files should be treated the same as paper files in 
terms of public access and that existing court practices are adequate 
to protect privacy interests.
    Federal court case files contain personal and sensitive information 
that litigants and third parties often are compelled by law to disclose 
for adjudicatory purposes. Bankruptcy debtors, for example, must 
divulge intimate details of their financial affairs for review by the 
case trustee, creditors, and the judge. Civil case files may contain 
medical records, personnel files, proprietary information, tax returns, 
and other sensitive information. Criminal files may contain arrest 
warrants, plea agreements, and other information that raise law 
enforcement and security concerns.
    Recognizing the need to review judiciary public access policies in 
the context of new technology, the Judicial Conference is considering 
privacy and access issues in order to provide guidance to the courts. 
The Judicial Conference has not reached any conclusions on these 
issues, and this request for public comment is intended as part of the 
Conference's ongoing study.
    The judiciary has a long tradition--rooted in both constitutional 
and common law principles--of open access to public court records. 
Accordingly, all case file documents, unless sealed or otherwise 
subject to restricted access by statute or federal rule, have 
traditionally been available for public inspection and copying. The 
Supreme Court has recognized, however, that access rights are not 
absolute, and that technology may affect the balance between access 
rights and privacy and security interests. See Nixon v. Warner 
Communications, Inc., 435 U.S. 589 (1978), and United States Department 
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 
749 (1989). These issues are discussed in more detail in an 
Administrative Office staff paper, ``Privacy and Access to Electronic 
Case Files in the Federal Courts,'' available on the Internet at 
www.uscourts.gov/privacyn.pdf. 

[[Page 67018]]

The Role of the Federal Judiciary

    The judiciary recognizes that concern about privacy and access to 
public records is not limited to the judicial branch. There is a 
broader public debate about the privacy and security implications of 
information technology. Congress has already responded to some of these 
concerns by passing laws that are designed to shield sensitive personal 
information from unwarranted disclosure. These laws, and numerous 
pending legislative proposals, address information such as banking 
records and other personal financial information, medical records, tax 
returns, and Social Security numbers. The executive branch is also 
concerned about implications of electronic public access to private 
information. Most recently, the President directed the Office of 
Management and Budget, the Department of Justice, and the Department of 
Treasury to conduct a study on privacy and security issues associated 
with consumer bankruptcy filings.
    Accordingly, the judiciary is interested in receiving comment on 
the appropriate scope of judicial branch action, if any, on the broad 
issue of access to public court records, and the corresponding need to 
balance access issues against competing concerns such as personal 
privacy and security.

Policy Alternatives on Electronic Public Access to Federal Court 
Case Files

    Regardless of what entity addresses the issues of privacy and 
electronic access to case files, the effort must be made to balance 
access and privacy interests in making decisions about the public 
disclosure and dissemination of case files. The policy options outlined 
below are intended to promote consistent policies and practices in the 
federal courts and to ensure that similar protections and electronic 
access presumptions apply, regardless of which federal court is the 
custodian of a particular case file. One or more of the policy options 
for each type of case file may be recommended to the Judicial 
Conference for its consideration. Some, but not all of the options are 
mutually exclusive.

Civil Case Files

    1. Maintain the presumption that all filed documents that are not 
sealed are available both at the courthouse and electronically.
    This approach would rely upon counsel and pro se litigants to 
protect their interests on a case-by-case basis through motions to seal 
specific documents or motions to exclude specific documents from 
electronic availability. It would also rely on judges' discretion to 
protect privacy and security interests on a case-by-case basis through 
orders to seal or to exclude certain information from remote electronic 
public access.
    2. Define what documents should be included in the ``public file'' 
and, thereby, available to the public either at the courthouse or 
electronically.
    This option would treat paper and electronic access equally and 
assumes that specific sensitive information would be excluded from 
public review or presumptively sealed. It assumes that the entire 
public file would be available electronically without restriction and 
would promote uniformity among district courts as to case file content. 
The challenge of this alternative is to define what information should 
be included in the public file and what information does not need to be 
in the file because it is not necessary to an understanding of the 
determination of the case or because it implicates privacy and security 
interests.
    3. Establish ``levels of access'' to certain electronic case file 
information.
    This contemplates use of software with features to restrict 
electronic access to certain documents either by the identity of the 
individual seeking access or the nature of the document to which access 
is sought, or both. Judges, court staff, parties and counsel would have 
unlimited remote access to all electronic case files.
    This approach assumes that the complete electronic case file would 
be available for public review at the courthouse, just as the entire 
paper file is available for inspection in person. It is important to 
recognize that this approach would not limit how case files may be 
copied or disseminated once obtained at the courthouse.
    4. Seek an amendment to one or more of the Federal Rules of Civil 
Procedure to account for privacy and security interests.

Criminal Case Files

    1. Do not provide electronic public access to criminal case files.
    This approach advocates the position that the ECF component of the 
new CM/ECF system should not be expanded to include criminal case 
files. Due to the very different nature of criminal case files, there 
may be much less of a legitimate need to provide electronic access to 
these files. The files are usually not that extensive and do not 
present the type of storage problems presented by civil files. 
Prosecution and defense attorneys are usually located near the 
courthouse. Those with a true need for the information can still access 
it at the courthouse. Further, any legitimate need for electronic 
access to criminal case information is outweighed by safety and 
security concerns. The electronic availability of criminal information 
would allow co-defendants to have easy access to information regarding 
cooperation and other activities of defendants. This information could 
then be used to intimidate and harass the defendant and the defendant's 
family. Additionally, the availability of certain preliminary criminal 
information, such as warrants and indictments, could severely hamper 
law enforcement and prosecution efforts.
    2. Provide limited electronic public access to criminal case files.
    This alternative would allow the general public access to some, but 
not all, documents routinely contained in criminal files. Access to 
documents such as plea agreements, unexecuted warrants, certain pre-
indictment information and presentence reports would be restricted to 
parties, counsel, essential court employees, and the judge.

Bankruptcy Case Files

    1. Seek an amendment to section 107 of the Bankruptcy Code.
    Section 107 currently requires public access to all material filed 
with bankruptcy courts and gives judges limited sealing authority. 
Recognized issues in this area would be addressed by amending this 
provision as follows: (1) Specifying that only ``parties in interest'' 
may obtain access to certain types of information; and (2) enhancing 
the 107(b) sealing provisions to clarify that judges may provide 
protection from disclosures based upon privacy and security concerns.
    2. Require less information on petitions or schedules and 
statements filed in bankruptcy cases.
    3. Restrict use of Social Security, credit card, and other account 
numbers to only the last four digits to protect privacy and security 
interests.
    4. Segregate certain sensitive information from the public file by 
collecting it on separate forms that will be protected from unlimited 
public access and made available only to the courts, the U.S. Trustee, 
and to parties in interest.

Appellate Cases

    1. Apply the same access rules to appellate courts that apply at 
the trial court level.
    2. Treat any document that is sealed or subject to public access 
restrictions at the trial court level with the same

[[Page 67019]]

protections at the appellate level unless and until a party challenges 
the restriction in the appellate court.

[FR Doc. 00-28671 Filed 11-7-00; 8:45 am]
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